EX-10.1






Exhibit 10.1




Form of Subscription Agreement




SUBSCRIPTION AGREEMENT




August 22, 2008



The undersigned investor (the “ Investor ”) hereby confirms its agreement with Columbia
Laboratories, Inc. (the “ Company ”) as follows:




     1. This Subscription Agreement (this “ Agreement ”) is made as of the date  set forth
below between the Company and the Investor.



     2. The Company has authorized the sale and issuance to certain investors of up to an
aggregate of 1,500,000 shares (the “ Shares ”) of its common stock, par value $0.01 per share (the
“Common Stock”), for a purchase price of $3.50 per share (the “Purchase Price”).



     3. The offering and sale of the Shares (the “Offering”) is being made pursuant to (1) an
effective Registration Statement on Form S-3 (Registration No. 333-38230) filed by the Company with
the Securities and Exchange Commission (the
“Commission”) as amended by any post-effective amendment filed by the Company pursuant to Rule 462(b) under the Securities Act of 1933,
as amended (the “Act”) (the “Registration Statement ”), which
contains the base prospectus (the “Base Prospectus”) and was filed with the Commission on May 31,
2000, (2) if applicable, certain “free writing prospectuses”
(as that term is defined in Rule 405 under the Act), that have or will be filed with the Commission
and delivered to the Investor on or prior to the date hereof and (3) a final prospectus supplement
(the “Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”) containing
certain supplemental information regarding the Shares and terms of the Offering that will be filed
with the Commission and delivered to the Investor (or made available to the Investor by the filing
by the Company of an electronic version thereof with the Commission) along with the Company’s
counterpart to this Agreement.



     4. The Company and the Investor agree that the Investor will purchase from the Company
and the Company will issue and sell to the Investor the Shares set forth below for the aggregate
purchase price set forth below. The Shares shall be purchased pursuant to the Terms and Conditions
for Purchase of Shares attached hereto as Annex I and incorporated herein by this reference
as if fully set forth herein. The Investor acknowledges that the Offering is not being underwritten
by the placement agent (the “Placement Agent”) named in the Prospectus Supplement and that there is
no minimum offering amount.



     5. The manner of settlement of the Shares purchased by the Investor shall be determined
by such Investor as follows:




Delivery by electronic book-entry at The Depository Trust Company (“ DTC ”), registered in the
Investor’s name and address as set forth below, and released by American Stock Transfer & Trust
Company the Company’s transfer agent (the “ Transfer Agent ”) (attention: Joan Greenfield,
telephone: 718-921-8522, to the Investor at the Closing (as defined in Section 3.1 of Annex A
hereto). NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:













 









	 	(I)	 	DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE
CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A
DEPOSIT/WITHDRAWAL AT CUSTODIAN (“DWAC”) INSTRUCTING THE TRANSFER
AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND
	 
	 	(II)	 	REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO
THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING
PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT: U.S. Bank, N.A.





	 	 	 	 	 
	U.S. Bank, N.A.

ABA # 91000022
BNF: USBANK PA & NJ CT WIRE CLRG 

Beneficiary Account Number: A/C 173103781816

Beneficiary Account Address: 777 E. Wisconsin Avenue, Milwaukee, WI 53202-5300

OBI: Benchmark Co/Columbia Labs 08 Escrow



REF: #128388000

	 	 
	 	 





IT IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE PROPER
ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC IN A TIMELY
MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES OR DOES NOT
MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED AT
CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING ALTOGETHER.




     6. [Intentionally Omitted].



     7. The Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three years with the Company or persons known
to it to be affiliates of the Company, (b) it is not a FINRA member or an Associated Person (as
such term is defined under the FINRA Membership and Registration Rules Section 1011) as of the
Closing, and (c) neither the Investor nor any group of Investors (as identified in a public filing
made with the Commission) of which the Investor is a part in connection with the Offering of the
Shares, acquired, or obtained the right to acquire, 20% or more of the Common Stock (or securities
convertible into or exercisable for Common Stock) or the voting power of the Company on a
post-transaction basis.



     Exceptions :


(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)




     8. The Investor represents that it has received or can obtain on the Commission’s EDGAR
filing system the Base Prospectus, which is part of the Company’s Registration Statement, the
documents incorporated by reference therein, and any free writing prospectus
(collectively, the “ Disclosure Package ”), prior to or in connection with the receipt of this
Agreement along with the Company’s counterpart to this Agreement.


     9. No offer by the Investor to buy Shares will be accepted and no part of the Purchase
Price will be delivered to the Company until the Company has accepted such offer by countersigning
a



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copy of this Agreement, and any such offer may be withdrawn or revoked, without obligation or
commitment of any kind, at any time prior to the Company (or the Placement Agent on behalf of the
Company) sending (orally, in writing, or by electronic mail) notice of its acceptance of such
offer. An indication of interest will involve no obligation or commitment of any kind until this
Agreement is accepted and countersigned by or on behalf of the Company.


Number of Shares :

Purchase Price Per Share : $3.50

Aggregate Purchase Price : $




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Please confirm that the foregoing correctly sets forth the agreement between us by signing in the
space provided below for that purpose.




Dated as of August __, 2008




	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	INVESTOR
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 
	 	 	 	 	 	 
	 	 	 	 	 





Agreed and accepted this                                                             




___ day of August 2008:




COLUMBIA LABORATORIES, INC.




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 





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ANNEX I




TERMS AND CONDITIONS FOR PURCHASE OF SHARES




     1. Authorization and Sale of the Shares . Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the Shares.



     2. Agreement to Sell and Purchase the Shares; Placement Agent.




     2.1 At the Closing (as defined in Section 3.1 of this Annex I), the Company will sell
to the Investor, and the Investor will purchase from the Company, upon the terms and conditions
set forth herein, the number of Shares set forth on the last page of the Agreement to which these
Terms and Conditions for Purchase of Shares are attached as Annex I (the “ Signature Page
”) for the aggregate purchase price therefor set forth on the Signature Page.




     2.2 The Company proposes to enter into substantially this same form of Subscription
Agreement with certain other investors (the “ Other Investors ”) and expects to complete sales of
Shares to them. The Investor and the Other Investors are hereinafter sometimes collectively
referred to as the “ Investors ,” and this Agreement and the Subscription Agreements executed by
the Other Investors are hereinafter sometimes collectively referred to as the “ Agreements .”




     2.3 The Investor acknowledges that the Company intends to pay The Benchmark Company LLC
(the “ Placement Agent ”) a fee 
(the “ Placement Fee ”) in respect of the sale of Shares to the
Investor.




     2.4 The Company has entered into a Placement Agency Agreement, dated August 22, 2008
(the “ Placement Agreement ”), with the Placement Agent that contains certain representations,
warranties, covenants, and agreements of the Company. A copy of the Placement Agreement is
available upon request.




3. Closings and Delivery of the Shares and Funds.




     3.1 Closing . The completion of the purchase and sale of the Shares (the “ Closing ”)
shall occur at a place and time (the “ Closing Date”) to be specified by the Company and the
Placement Agent, and of which the Investors will be notified in advance by the Placement Agent,
in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended
(the “ Exchange Act ”). At the Closing, (a) the Company shall cause the Transfer Agent to deliver
to the Investor the number of Shares set forth on the Signature Page registered in the name of
the Investor or, if so indicated on the Investor Questionnaire attached hereto as
Schedule A , in the name of a nominee designated by the Investor and (b) the aggregate
purchase price for the Shares being purchased by the Investor will be delivered by or on behalf
of the Investor to the Company.




     3.2 (a) Conditions to the Company’s Obligations . The Company’s obligation to issue and
sell the Shares to the Investor shall be subject to: (i) the receipt by the Company of the
purchase price for all of the Shares being purchased pursuant to the Agreements and (ii) the
accuracy of the representations and warranties made by the Investor and the fulfillment of those
undertakings of the Investor to be fulfilled prior to the Closing Date.




     (b) Conditions to the Investor’s Obligations . The Investor’s obligation to
purchase the Shares will be subject to the accuracy of the representations and warranties made by
the



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Company and the fulfillment of those undertakings of the Company to be fulfilled prior to the
Closing Date that are contained in the Placement Agreement and the Subscription Agreement, and to
the condition that the Placement Agent shall not have: (i) terminated the Placement Agreement
pursuant to the terms thereof or (ii) determined that the conditions to the closing in the
Placement Agreement have not been satisfied. The Investor’s obligations are expressly not
conditioned on the purchase by any or all of the Other Investors of the Shares that they have
agreed to purchase from the Company or the issuance of any minimum amount of Shares by the
Company.




     3.3 Delivery of Funds by Electronic Book-Entry at The Depository Trust Company . No
later than one (1) business day after the execution of this Agreement by the Investor and the
Company , the Investor shall remit by wire transfer the amount of funds equal to the
aggregate purchase price for the Shares being purchased by the Investor to the following account
designated by the Company and the Placement Agent pursuant to the terms of that certain Escrow
Agreement (the “ Escrow Agreement ”) dated as of August 21, 2008, by and among the Company, the
Placement Agent and U.S. Bank, N.A. (the “ Escrow Agent ”):


U.S. Bank,
N.A.

ABA # 091000022

BNF: USBANK PA & NJ CT WIRE CLRG

Beneficiary Account Number: A/C 173103781816

Beneficiary Account Address: 777 E. Wisconsin Avenue, Milwaukee, WI
53202-5300

OBI: Benchmark Co/Columbia Labs 08 Escrow

REF: #128388000


     Such funds shall be held in escrow until the Closing and delivered by the Escrow Agent on
behalf of the Investors to the Company upon the satisfaction, in the reasonable judgment of the
Placement Agent, of the conditions set forth in Section 3.2(b) hereof. The Placement Agent shall
have no rights in or to any of the escrowed funds unless the Placement Agent and the Escrow Agent
are notified in writing by the Company in connection with the Closing that a portion of the
escrowed funds shall be applied to the Placement Fee in accordance with the terms of the Escrow
Agreement. The Investor agrees to indemnify and hold the Escrow Agent and the Placement Agent
harmless from and against any and all losses, costs, damages, expenses and claims (including,
without limitation, court costs and reasonable attorneys fees) (“Losses”) arising from the
Investor’s failure to comply with this Section 3.3 or otherwise with respect to the funds held in
escrow pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that
such Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent
or the Placement Agent. Anything in this Agreement to the contrary notwithstanding, in no event
shall the Escrow Agent or the Placement Agent be liable for any special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost profits), even if the
Escrow Agent or the Placement Agent has been advised of the likelihood of such loss or damage and
regardless of the form of action.



     3.4 Delivery of Shares by Electronic Book-Entry at The Depository Trust Company .
No later than one (1) business day after the execution of this Agreement by the Investor and
the Company , the Investor shall direct the broker-dealer at which the account or accounts to
be credited with the Shares being purchased by such Investor are maintained, which broker/dealer
shall be a DTC participant, to set up a Deposit/Withdrawal at Custodian (“ DWAC ”) instructing



6









 







American Stock Transfer & Trust Company, the Company’s transfer agent, to credit such account or
accounts with the Shares by means of an electronic book-entry delivery. Such DWAC shall indicate
the settlement date for the deposit of the Shares, which date shall be provided to the Investor by
the Placement Agent. Simultaneously with the delivery to the Company by the Escrow Agent of the
funds held in escrow pursuant to Section 3.3 above, the Company shall direct its transfer agent to
credit the Investor’s account or accounts with the Shares pursuant to the information contained in
the DWAC.



     4. Representations, Warranties and Covenants of the Investor.



          4.1 The Investor represents and warrants to, and covenants with, the Company that
(a) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to
make decisions with respect to, investments in shares presenting an investment decision like that
involved in the purchase of the Shares, including investments in securities issued by the Company
and investments in comparable companies, and has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to purchase the Shares, (b) the
Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in
preparation of the Prospectus Supplement and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date and (c) the Investor, in connection
with its decision to purchase the number of Shares set forth on the Signature Page, has reviewed
the Disclosure Package and is relying only upon the Disclosure Package and the representations and
warranties of the Company contained herein.




          4.2 The Investor acknowledges, represents and agrees that no action has been or will
be taken in any jurisdiction outside the United States by the Company or the Placement Agent that
would permit an offering of the Shares, or possession or distribution of offering materials in
connection with the issue of the Shares in any jurisdiction outside the United States where action
for that purpose is required. Each Investor outside the United States will comply with all
applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells
or delivers Shares or has in its possession or distributes any offering material, in all cases at
its own expense. The Placement Agent are not authorized to make and have not made any
representation or use of any information in connection with the issue, placement, purchase and sale
of the Shares, except as set forth or incorporated by reference in the Disclosure Package.




          4.3 The Investor further represents and warrants to, and covenants with, the Company
that (a) the Investor has full right, power, authority and capacity to enter into this Agreement
and to consummate the transactions contemplated hereby and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement, and (b) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting
parties’ rights generally and except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law) and except as the indemnification agreements of the Investors herein may be legally
unenforceable.




          4.4 The Investor understands that nothing in this Agreement, the Prospectus or any
other materials presented to the Investor in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and



7









 






investment advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Shares.




          4.5 Each Investor represents, warrants and agrees that, since the earlier to occur
of (i) the date on which the Placement Agent first contacted such Investor about the Offering and
(ii) the date of this Agreement, it has not engaged in any transactions in the securities of the
Company (including, without limitation, any Short Sales involving the Company’s securities). Each
Investor covenants that it will not engage in any transactions in the securities of the Company
(including Short Sales) prior to the time that the transactions contemplated by this Agreement are
publicly disclosed. Each Investor agrees that it will not use any of the Shares acquired pursuant
to this Agreement to cover any short position in the Common Stock if doing so would be in violation
of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all
“short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act,
whether or not against the box, and all types of direct and indirect stock pledges, forward sales
contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in
Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis),
and sales and other transactions through non-US broker dealers or foreign regulated brokers.




     5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary .
Notwithstanding any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the Investor of the Shares
being purchased and the payment therefor. The Placement Agent shall be a third party beneficiary
with respect to representations, warranties and agreements of the Investor in Section 4 hereof.



     6. Notices . All notices, requests, consents and other communications hereunder will be
in writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and will be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by International Federal Express, two
business days after so mailed and (iv) if delivered by facsimile, upon electric confirmation of
receipt and will be delivered and addressed as follows:


6.1 if to the Company, to:



Columbia Laboratories, Inc.

354 Eisenhower Parkway

Livingston, NJ 07039

Attention: Michael McGrane, Senior Vice President and General Counsel

Fax: (973) 994-3001



with copies to:



Kaye Scholer LLP

425 Park Avenue

New York, NY 10022




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Attention: Adam H. Golden, Esq.

Fax: (212) 836-8689




          6.2 if to the Investor, at its address on the Signature Page hereto, or at such
other address or addresses as may have been furnished to the Company in writing.




     7. Changes . This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Investor.



     8. Headings . The headings of the various sections of this Agreement have been inserted
for convenience of reference only and will not be deemed to be part of this Agreement.



     9. Severability. In case any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein will not in any way be affected or impaired thereby.



     10. Governing Law . This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to the conflicts of laws principles
thereof.



     11. Counterparts . This Agreement may be executed in two or more counterparts, each of
which will constitute an original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties. The Company and the Investor acknowledge and agree that
the Company shall deliver its counterpart to the Investor along with the Base Prospectus and the
Prospectus Supplement (or the filing by the Company of an electronic version thereof with the
Commission).



     12. Confirmation of Sale . The Investor acknowledges and agrees that such Investor’s
receipt of the Company’s counterpart to this Agreement, together with the Base Prospectus and the
Prospectus Supplement (or the filing by the Company of an electronic version thereof with the
Commission), shall constitute written confirmation of the Company’s sale of Shares to such
Investor.



     13. Press Release . The Company and the Investor agree that the Company shall issue a
press release announcing the material terms of the Offering prior to the opening of the financial
markets in New York City on the business day immediately after the date hereof to the extent
permitted by applicable law and the rules and regulations of the Commission.



     14. Termination . In the event that the Placement Agreement is terminated by the
Placement Agent pursuant to the terms thereof, this Agreement shall terminate without any further
action on the part of the parties hereto.





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SCHEDULE A TO ANNEX I




COLUMBIA LABORATORIES, INC.




INVESTOR QUESTIONNAIRE



Pursuant to Section 3 of Annex I to the Agreement, please provide us with the following
information:





	1.	 	The exact name that your Shares are to be registered in. You may use a nominee name if appropriate:
	 
	 	 	                                                                             
      






	2.	 	The relationship between the Investor and the registered holder listed in response to item 1 above:
	 
	 	 	                                                                             
      






	3.	 	The mailing address of the registered holder listed in response to item 1 above:
	 
	 	 	                                                                             
      






	4.	 	The Social Security Number or Tax Identification Number of the registered holder
listed in the response to item 1 above:
	 
	 	 	                                                                          
         






	5.	 	Name of DTC Participant (broker-dealer at which the account or accounts to be
credited with the Shares are maintained); please include the name and telephone
number of the contract person at the broker-dealer:
	 
	 	 	                                                                           
        
	 
	 	 	                                                                                   
	 
	 	 	                                                                             
      






	6.	 	DTC Participant Number:
	 
	 	 	                                                                             
      






	7.	 	Name of Account at DTC Participant being credited with the Shares:
	 
	 	 	                                                                            
       
	 
	 	 	                                                                              
     






	8.	 	Account Number at DTC Participant being credited with the Shares:
	 
	 	 	                                                                            
       





Schedule A to Annex I — Page 1